Meyers v. State ( 1928 )

The State has filed a motion for rehearing which was argued orally in such convincing manner as to challenge our attention. The State concedes that the case depends on the establishment of three issues; first, that appellant received the check for $88 issued by the Security Union Insurance Company of Houston to cover the account of a patient by the name of McKay; second, that on October 30th, 1926, Baylor University (Hospital) was short an amount of cash equal to the face of said check; third, that appellant took $88, the equivalent of the check in cash from the funds belonging to such institution and substituted the check for $88 in its place and converted the money to his own use.

There is no question but that the check reached the hospital. If it had followed the regular course it would have gone to the cashier and a receipt would have issued covering the check and the patient's account would have been credited with the amount. No receipt ever issued. The cashier testified that she never saw the check in question. However, it found its way to the bank on October 30th as a deposit to the credit of the hospital, bearing an indorsement in appellant's handwriting. The card of the patient McKay disappeared and could never be found. There seems no room for doubt that appellant handled the check. No other employee of the institution was ever shown to have seen it. To the writer's mind no difficulty is found in determining the first issue in favor of the state.

On October 30th, 1926, was Baylor University (Hospital) short in cash, and if so, how much? Was it enough to cover the amount of the check? Under the bookkeeping system employed any cash or check paid to the cashier was evidenced by a triplicate receipt, one copy of which remained in the receipt book. These receipts were supposed to show whether the sum covered was cash or check but they did not always do so. The deposits in the bank for any particular day was supposed to reflect the receipts of the previous day as shown by the receipt book kept by the cashier and the cash book kept by the bookkeeper. The amounts deposited in the bank on October 30th aggregated the sum of $727.49, of this amount $578.17 was shown by the receipt book, the balance presumably being shown on the cash book, but not appearing in the receipt book. The cash book was not put in evidence. An absence from the record of the items shown thereon may account for much of the confusion in our own mind in attempting to reach a correct disposition of the case. The main thing, however, is to arrive at the cash on hand on October 29th. The bookkeeper testified that to get at the actual cash taken in on October 29th he would go to the receipt book, leaving the inference that items on the cash book reflected other than cash transactions and therefore leaving the items on the cash book not as important as might at first appear. The receipt book is in evidence. Some of the items show cash received, others checks received, while some show only the amounts received, being blank as to whether they represent cash or checks. The items shown on their face to have been cash aggregate $69.60. The items left blank and which may represent either cash or checks aggregate $126.30, and to ascertain about them resort must be had to the witnesses. Upon that point Mrs. Reese, the cashier, testified:

"On the 29th day of October, 1926, $160.65 cash was received on that day. I don't know what the total amounts of receipts of cash and checks were. * * * We have a record of $160.65 being taken in in cash on October 29th. That record is down here. I did not make that record in person or give receipts for all that money. I gave them during the day and when the night man came on he made his. Here is where the night man came on, — one, two, three — he just wrote three receipts and all three of them were checks, none of his receipts were cash. When I left there all the cash that had been taken in that day had been receipted for by me. That cash was put in the cash drawer and the checks that were taken in while I was there were put in that same drawer. The deposit slip would be made up from the total amount in that book on the 29th. There was so much cash and so much checks."

Mr. Boyles, the bookkeeper testified:

"The total cash receipts on October 29, 1926, was $727.49. I have gone through the receipt book to see how much of that was actually cash received that day. $106.65 that I can verify was cash that day."

On cross-examination the witness was evidently handed the receipt book and he picked out three items, $9.05, $22.50 and $4.00, aggregating $35.55, which he testified positively were actual cash items, although not so shown on the receipt book, which added to the $69.60 shown by the book itself to represent cash, would make $105.15. As to the other items silent on the book as to whether they were cash or checks he said he did not know. It must be remembered, however, that Mrs. Reese, the cashier who kept the receipt book, testified positively that the receipts for October 29th actually represented $160.65 in cash. When the deposits were made in the bank on October 30th only $12.87 in cash was accounted for. What became of the balance of the money? It was shown that checks were sometimes cashed by the cashier for employees and patients which would of course absorb the money to the amount of the checks so cashed, but what about the particular day in question, October 29th? Mrs. Reese testified:

"I do not remember cashing a check that day. Sometimes I cashed checks but I never cashed a check over $10.00. I do not remember cashing any that day. I do not know whether Mrs. Storey cashed any. Miss Danner didn't cash them — not out of my cash."

It is evident that Mrs. Storey cashed no checks on October 29th for the record shows that she was not at the hospital on that date.

Mr. Boyles, the bookkeeper, testified to some apparent changes in the receipt book as to items from cash to checks and vice versa, the significance of which is not apparent to us. Mrs. Reese, the one in charge of the book, testified positively that she made no changes in it. When the face of the books and the face of the bank deposit slips are taken many discrepancies are found which can not be reconciled, as pointed out in our original opinion. For instance, items are listed on the receipt book as checks and no corresponding item of such checks are found on the deposit slips; likewise, items are listed on the deposit slips as checks which are not found in the receipt book. Under the state's theory of the case this was to be expected as to the $88 check which was claimed to have been substituted in the deposit in lieu of cash equivalent taken out of the funds. The figures which have confused us were before the jury who must have experienced the same difficulty in dealing with them as we have. Notwithstanding the discrepancies mentioned we have after a careful re-examination of the record reached the conclusion that the jury was warranted in accepting the testimony of Boyles and Mrs. Reese as to the actual cash on hand, they being the only witnesses having any acquaintance with the books. Having reached such conclusion it is clear that we would be unauthorized to set aside a verdict which reflected a finding by the jury that $88 in money was taken from the funds and a check for that amount substituted in its stead.

Did appellant get the $88 in money? He did not testify upon the trial but his written and verbal statements made to others are in the record. There was no direct admission by him as to connection with the particular $88 transaction, but his general method of peculation is admitted. Here is his written statement.

"I hereby confess that I have taken funds from the Baylor University Hospital Department during the last year and a half of my connections as Business Manager. I have failed to keep any record whatsoever covering these shortages and unable to state the exact amount. I have, with my wife, gone over our financies during the last two years and there is, to our belief, a discrepancy of about Three Thousand ($3,000.00) Dollars. This is only an approximate, how much more I would not undertake to say. The approximation is only a rough calculation, based on my expenditures and salary in the last two years. I wish to deny that I have ever taken, directly or indirectly, one cent from the professional schools. I have never taken a patient's remittance from the Hospital during my connection there. My transactions were with insurance companies doing business with Baylor Hospital. Ninety-five per cent (95%) of the money taken was where I would substitute checks of the Texas Employers Insurance Association. These monies were taken during the absence of Miss Danner, while I made up her deposits for her. Checks were substituted for cash received the day before, which cash was taken by me. To destroy evidence of payments made, the record cards were torn up by me. My reason for taking insurance money rather than patients' checks, was to conceal the misappropriation, since there was a liklihood of some patient's check being returned from the bank unhonored, either by incorrect signature, insufficient funds, etc. Had one of these checks been returned, I would have been detected in this manner some time ago. All the foregoing statements are true to the best of my knowledge and belief, and are made voluntarily by me. These statements are also made without any promises made by anybody, whatsoever, of any leniency to be shown me for the acts that I have committed. Due to my long connection with Baylor University, I ask the Trustees to show mercy, if possible, for the acts that I have committed."

Here follows appellant's statement to witness Collins: "Meyers didn't tell me anything about the way he handled any particular check; he told me what his plan was with reference to these checks. He said that when the checks he took came into the hospital in the mail he would take the check and put it in his pocket until some convenient opportunity came for him to take the hospital's cash which was going to the bank and put in this particular check that he had in the drawer and take out an equal amount of cash. He told me that when he put in an insurance company check that was going to be deposited he would take out an equal amount of cash out of the hospital's cash."

Having in mind the foregoing statements and reverting to the present case we find the facts indicate appellant's general course of peculation was followed in this instance. The $88 check did go into appellant's hands for it was indorsed by him in person. It never went to the cashier in order that receipt might issue in the ordinary course of business and it be passed to the credit of McKay's account which the check was intended to cover. McKay's card disappeared and could never be found. In describing his method appellant said "to destroy evidence of the payments made the record cards were torn up by me." He avoided any misappropriation of patients' individual checks for fear of detection. Checks of insurance companies were his specialty. The $88 check was this kind. We think under all the facts the jury was justified in reaching the conclusion that appellant carried out his general scheme in handling the $88 check in question and abstracted that much money and substituted the check in its place.

Having reached the conclusion that we were in error in having reversed the judgment it is proper to discuss other questions raised by appellant. There were two counts in the indictment, the first only being submitted. In a motion to quash the indictment appellant criticized the second count in several particulars and takes the position that if the second count should be held invalid the indictment then failed to conclude "against the peace and dignity of the state." Appellant's position is not tenable. The indictment as a whole concludes "against the peace and dignity of the state." Polk v. State,275 S.W. 1003.

Bill of exception number one deals with the action of the court in overruling appellant's application for continuance which was predicated on the ground that appellant's attorneys had been hampered in properly representing him because of the fact that they had just been engaged in the prosecution of another case. It appears from the court's qualification to the bill that the attorney's actively represented appellant throughout every stage of the trial and there was no evidence that they were hampered in their representation, but on the contrary, it appears that they represented him in a most admirable and capable manner. As thus qualified the bill does not present error.

There appears in the record purported objections to the court's charge. They bear no authentication whatever of the trial judge. In such condition they can not be considered. Cantu v. State, 276 S.W. 433. We note that one of these exceptions complains at the omission to charge on circumstantial evidence and if the record was in such condition as to show that the objection to the charge was properly called to the court's attention, it might present a somewhat serious question. We assume that the learned trial judge declined to charge on circumstantial evidence on account of appellant's confession, but that confession not being a direct admission of guilt to the particular transaction under investigation, would as indicated in our original opinion have called for a charge on circumstantial evidence had complaint of its omission been properly presented. The court gave the following special charge at appellant's request.

"You are instructed as a part of the law in this case that the law presumes the defendant to be innocent until the State has proven the truth of every material allegation set out in the indictment beyond every reasonable doubt and to the exclusion of every other reasonable doubt except that of the guilt of the defendant, and if from the evidence or lack of evidence you believe the State has failed to do this or if you have a reasonable doubt whether or not the State has proven his guilt beyond a reasonable doubt, then it will be your duty to say by your verdict, 'We, the jury find the defendant NOT GUILTY.' "

The failure to charge on circumstantial evidence will not demand a reversal of the case in the absence of exceptions to the court's charge because of its omission called in a timely manner to the attention of the trial judge, or in the absence of a special charge upon the subject designed to supplement the omission from the general charge. The complaint of the omission must be called to the judge's attention in one way or the other. Givens v. State, 98 Tex.Crim. R., 267 S.W. 725.

By bill of exception number three appellant complains of the action of the court in permitting the state to introduce in evidence the charter of Baylor University. The charter is not set out in the bill nor is the part objected to set forth and in this respect the bill of exception is incomplete. Buchanan v. State, 298 S.W. 569; Branch's Ann. Tex. P. C., sec. 207,

Appellant complains in bill of exception number four of the action of the court in admitting in evidence appellant's written statement, the ground of objection being that the statement shed no light on the transaction under consideration, but involved other separate and distinct offenses. This bill fails to incorporate in it the statement to which objection was urged and in this respect is incomplete in the same particular as was bill of exception number three.

By bill number five appellant complains of the action of the court in permitting a witness for the state to return to the witness stand after both sides had closed and before the argument had begun and state to the jury that he had advised appellant's wife in the absence of appellant that she did not need a lawyer. The bill of exception is qualified as follows:

"The defendant had asked the witness Thomas if he had advised the wife of defendant not to employ counsel and the witness was merely answering the question."

The qualification shows the bill to be without merit.

The state's motion for rehearing is granted, the judgment of reversal is set aside and the judgment is now affirmed.

Affirmed.